Today’s News & Commentary — November 7, 2019


Published November 7th, 2019 - 11.07.1930


On Tuesday, the Seventh Circuit held that government employees who paid agency fees to public sector unions cannot recover fees collected prior to the Supreme Court’s 2018 decision in Janus v. AFSCME.  The plaintiff in Tuesday’s case was Mark Janus himself.  Writing for a three-judge panel, Chief Judge Diane Wood explained that the good-faith defense shielded AFSCME and Illinois from liability.  When collecting fees, both the union and the state relied on the Supreme Court’s 1977 decision in Abood, which unambiguously allowed for agency fee collection for activities related to collective bargaining and contract administration, though not for union political activities.  They had no obligation to place the fees in escrow while the constitutionality of the public sector agency shop was re-litigated.

Elections across the country on Tuesday were generally viewed as good news for labor.  In Virginia, Democrats won trifecta control of state government.  Eric Levitz at New York Magazine called on Virginia Democrats to waste no time in repealing the state’s right-to-work law, which has helped earn Virginia a reputation as one of the most anti-worker states in the country.  On Wednesday, however, Governor Ralph Northam was noncommittal. Asked about his desire to overturn the law, he called it “a hypothetical question.”  He also said he supported raising the minimum wage, but did not specify a dollar amount.  The state’s Democrats will also have an opportunity to ratify the Equal Rights Amendment.

In addition, Democrats claimed a narrow victory in the Kentucky governor’s race.  In his victory speech, Andy Beshear gave a specific thank you “to our union families who helped make this election happen.”  Alexia Fernández Campbell at Vox explains how public school teachers were a key part of the fight.  Incumbent Governor Matt Bevin, a Republican and Trump ally, proposed a state budget in January 2018 slashing funding for public schools.  In April 2018, Bevin then signed a bill cutting teacher pensions.  That month, teachers in the state walked out in response to Bevin’s actions and as part of a strike wave across the country that spring.  Bevin characterized the educators as “lazy” and “thugs” and said that the teachers were responsible for any child abuse that took place while students were not in school because of the strike.  Bevin’s attacks mobilized teachers against him, with approximately 1,000 members of the Kentucky Education Association volunteering for the Beshear campaign.  Beshear has promised an immediate $2,000 raise for all teachers, a pay floor of $40,000, and new sources of funding for teacher pensions.

Juli Briskman, the woman fired by a government contractor after she famously flipped off President Trump’s motorcade in October 2017, was elected to a new job on Tuesday night as a supervisor in Loudon County, Virginia.  Two years ago tomorrow, Professor Sachs wrote about why her termination should have been illegal.  Invoking the 1983 Third Circuit case Novosel v. Nationwide Insurance, he explained that Briskman’s discharge was contrary to public policy as derived from the First Amendment.  While Novosel’s weak version of state action doctrine never took hold, Sachs claimed that Trump’s politicization of the private sector workplace had disrupted the traditional boundary between public and private.

As the first 2020 primary votes approach, Democratic candidates continue to court union members more aggressively than in past cycles.  Labor support appears to be coalescing around Bernie Sanders, Elizabeth Warren, and Joe Biden, though most unions have yet to endorse a candidate.  Meanwhile, the Democratic National Committee is working with media partners PBS NewsHour and Politico to find a new location for the sixth Democratic debate in December, originally set to be hosted at UCLA.  The change comes in response to pressure from AFSCME 3299, a union of 26,000 service and patient care workers at the University of California and the university’s largest.  For three years, the union has called on speakers to boycott UC events until a fair contract is reached.  The workers are planning to strike next week.

At the Los Angeles Times, Johana Bruiyan profiles the leaders of the Google walkout and explains how the action motivated tech workers to become workplace activists.  In the wake of the walkout, employees at Silicon Valley companies began to tackle issues such as forced arbitration, ICE contracts, facial recognition technology, sexual harassment and retaliation, and contract labor.  Full-time Google employees have considered the possibility of a union drive, but some feel that because they are highly-paid and relatively difficult to replace that a union is not necessary.  One idea being floated is the creation of a “solidarity union.”  Essentially, white-collar workers could form a central organizing committee and advocate on issues they care about without engaging in traditional collective bargaining.

Working in conjunction with the People’s Parity Project, LGBTQ+ student groups at 13 law schools say they will no longer accept financial support from or encourage their members to take jobs at law firms like Gibson Dunn that force workers to sign arbitration agreements as a condition of employment.  The groups wrote in a letter to Gibson Dunn that forced arbitration bars LGBTQ employees from bringing their discrimination and harassment claims in court and deprives LGBTQ law students of “crucial information” when evaluating firms for LGBTQ friendliness because of the secretive nature of arbitration.

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